IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 29, 2008
No. 08-20214
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARLON ZAVALA-MARTINEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:01-CR-226-ALL
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
In 2001, Defendant-Appellant Marlon Zavala-Martinez pleaded guilty to
illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a), (b)(2), and
was sentenced to 57 months in prison and three years of supervised release.
Zavala-Martinez was released from custody in March 2005. Two years later,
Zavala-Martinez was again arrested for illegal reentry, a charge to which he
eventually pleaded guilty. Accordingly, the district court revoked Zavala-
Martinez’s supervised release and sentenced him to 20 months in prison, with
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 08-20214
no further supervised release to follow. Zavala-Martinez now appeals that
revocation decision, arguing for the first time that the revocation proceeding did
not comport with the minimum requirements of due process.
A district court may revoke a defendant’s supervised release if it finds by
a preponderance of the evidence that a condition of release has been violated.
United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995). This court reviews
for abuse of discretion a decision to revoke supervised release. Id. Questions of
constitutional violations are normally reviewed de novo. See United States v.
Webster, 162 F.3d 308, 333 (5th Cir. 1998). However, because Zavala-Martinez
did not present his due process argument to the district court, our review is for
plain error. See United States v. Martinez, 496 F.3d 387, 389 (5th Cir. 2007);
United States v. Magwood, 445 F.3d 826, 828 (5th Cir. 2006). To show plain
error, Zavala-Martinez must show an error that is clear or obvious and that
affects his substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir.
2008). If Zavala-Martinez makes such a showing, this court has the discretion
to correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
A defendant facing revocation of supervised release, like Zavala-Martinez,
is entitled to certain minimal due process rights such as written notice of alleged
violations, disclosure of the evidence against him, an opportunity to be heard
and present evidence, an opportunity to confront and cross-examine witnesses,
an impartial hearing body, and a written statement of reasons by the finder of
fact. Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972); see also United States v.
Ayers, 946 F.2d 1127, 1129-30 (5th Cir. 1991); FED. R. CRIM. P. 32.1. When a
defendant pleads true to the allegations that he violated the terms of his
supervised release, he waives the due process protections afforded to him except
for his right to present mitigating evidence suggesting that the revocation is not
warranted. See United States v. Holland, 850 F.2d 1048, 1050-51 (5th Cir.
1988). Although it is not clear whether the revocation hearing satisfied the
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No. 08-20214
minimum requirements of due process, any error was harmless in light of
Zavala-Martinez’s unconditional guilty plea conviction on the illegal reentry
charge.
The record reflects that Zavala-Martinez was arrested for illegal reentry
on May 7, 2007. The record further reflects that three months later, Zavala-
Martinez pleaded guilty as charged. Because Zavala-Martinez pleaded guilty to
the offense that formed the basis for the revocation petition, the district court
had no choice but to revoke his supervised release. See 18 U.S.C. § 3583(e)(3);
see also United States v. Spraglin, 418 F.3d 479, 481 (5th Cir. 2005); United
States v. Kindred, 918 F.2d 485, 488 (5th Cir. 1990); U.S. SENTENCING
GUIDELINES MANUAL § 7B1.3(a)(1) (2007). The record further reflects that the
district court gave Zavala-Martinez an opportunity to offer mitigating evidence.
See Holland, 850 F.2d at 1050-51. In light of his guilty plea, Zavala-Martinez
cannot show plain error. Accordingly, the judgment of the district court is
AFFIRMED.
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